Continental Cas. Co. v. Wilson-Avery, Inc., WILSON-AVER

• Decision Date: 03 May 1967
• Docket Number: No. 42588,INC,No. 2,WILSON-AVER,42588,2
• Parties: CONTINENTAL CASUALTY COMPANY et al. v
• Court: Georgia Court of Appeals

Page 152

156 S.E.2d 152

115 Ga.App. 793

CONTINENTAL CASUALTY COMPANY et al. v. WILSON-AVERY, INC.

No. 42588.

Court of Appeals of Georgia, Division No. 2.

May 3, 1967.

Rehearing Denied May 22, May 30, 1967.

Certiorari Denied July 6, 1967.

Syllabus by the Court

1. It was not error to overrule defendants' imperfect special demurrers to plaintiff's petition.

2. The verdict for plaintiff was authorized by the evidence.

3. The court did not abuse its discretion in denying defendants' motion for mistrial based on a remark of plaintiff's counsel where the remark was related to the evidence and was not injurious to defendants.

4. Testimony as to the contents of construction plans was not admissible, the plans being the best evidence.

5. Evidence irrelevant to any issue in the case was not admissible.

6. The court did not err in charging the jury that the opinion testimony of an expert witness is not conclusive.

Wilson-Avery, Incorporated, brought this suit against the Coite Somers Company and Continental Casualty Company to recover for painting and decorating performed by plaintiff, a subcontractor, in the construction of Brunswick College, a project in which defendant Coite Somers Company was the prime contractor. Of the amount sued for, plaintiff sought $3,528.69 as the balance due for work required by the subcontract and $2,371.11 as the reasonable value of extra work performed by plaintiff. Trial of the case resulted in a verdict and judgment for plaintiff.

Duncan Graham, Vidalia, Martin, Snow, Grant & Napier, Cubbedge Snow, Macon, for appellants.

Melton, McKenna & House, Mitchell P. House, Jr., Macon, for appellee.

BELL, Presiding Judge.

1. Both of defendants' special demurrers confuse the distinction between a special demurrer which seeks to eliminate superfluous matter, the sustaining of which results in striking the unnecessary matter, and one which objects to allegations for uncertainty and indefiniteness or which for some other reason seeks to have the plaintiff allege additional matter. Ga. Procedure and Practice § 9-13, p. 223. Special demurrers which confuse this distinction do not meet the requisite standard of perfection. Hughes v. Jackson, 109 Ga.App. 804, 808, 137 S.E.2d 487; Ogletree Hatchery, Inc. v. John W. Eshelman & Sons, Inc., 113 Ga.App. 761, 764, 149 S.E.2d 923. It was not error to overrule these demurrers.

2. Defendants contend that most of the alleged extra work was required by the subcontract. It is elementary that if the disputed work was included in the work specified by the subcontract to be performed for a lump sum, plaintiff's claim to additional compensation for the performance of this work must fail for want of consideration. Willingham Sash &c. Co. v. Drew, 117 Ga. 850(2), 45 S.E. 237. However, the subcontract did not obligate plaintiff to paint or finish surfaces which the plans contemplated would be prefinished before installation at the job site.

The subcontract contained the following provision: 'All work shall be done under the direction of the architect and his decisions as to the true construction and meaning of the drawings and specifications shall be final. Subcontractor shall conform to and abide by any additional specifications, drawings or explanations furnished by the architect to illustrate the work to be done.' During the progress of construction the architect furnished additional specifications which were introduced in evidence on the trial. One set of additional specifications was a 'Paint Color Schedule' for those portions of the construction which were to be painted at the job site. Another set listed 'Color Selections of Prefinished Materials,' setting forth items which were to be furnished in colors applied prior to installation. 'Where parties to a building or construction contract designate a person who is authorized to determine questions relating to its execution, and stipulate that his decision shall be binding and conclusive, both parties are bound by his determination of those matters which he is authorized by the contract to determine, except in case of fraud, or of such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment.' State Hwy. Dpt. of Georgia v. MacDougald Construction Co., 189 Ga. 490, 494, 6 S.E.2d 570. See 13 Am.Jur.2d 36, Building and Construction Contracts § 34; Ann. 54 A.L.R. 1255, Ann. 110 A.L.R. 137.

The drawings and original specifications in this case did not clearly identify all those materials which were to be prefinished and those which were to be jobfinished. Nor did the subcontract classify these materials. The architect having made a classification, his interpretation was binding under the authority of MacDougald, supra. The jury was authorized to find that most of the alleged extra work was embraced in the architect's list of 'Color Selections for Prefinished Materials,' was not included in the 'Paint Color Schedule,' and thus was not required by the subcontract.

A part of the work in dispute was necessitated when the architect found certain surfaces previously finished by plaintiff to be defective by reason of faulty work either of the prime contractor or of another subcontractor. In this connection see Mion Chemical Brick Corp. v. Daniel Construction Co., 111 Ga.App. 369(1), 141 S.E.2d 839. The specifications, which were made a part of the subcontract, stipulated: 'The contractor shall examine the specifications and job conditions before starting any painting and if he is not satisfied with the conditions thereof, he shall call the matter to the attention of the architect in writing. After commencing his work the contractor shall be held responsible for the final results.' The evidence disclosed that prior to painting the surfaces in question, plaintiff called the faulty work to the attention of the prime contractor's general superintendent, who instructed plaintiff to paint these surfaces in their existing condition. With respect to this portion of the work, the prime contractor must be held to have waived the right to rely on the quoted stipulation.

As to the remaining items of extra work, defendants concede that the repainting of certain doors and the finishing of plywood panels which the original plans clearly required to be prefinished were not covered in the subcontract.

The third and fourth enumerations are without merit.

3. In his concluding argument to the jury plaintiff's counsel stated: 'Let the burden fall where it belongs, on the man with the three-quarters of a million dollar contract, not on the man with the $12,000 contract.' The trial court overruled defendants' motion for mistrial, and neither rebuked counsel nor gave the jury cautionary instructions. One enumeration alleges that the court erred in refusing to declare a mistrial on account of this misconduct of plaintiff's counsel.

Remarks of counsel amount to misconduct and may require corrective action or mistrial even where the remarks are in some way related to the evidence if the argument is unfairly calculated to arouse passion or prejudice. See Farmer v. State, 91 Ga. 720, 728, 18 S.E. 987; Moore v. State, 10 Ga.App. 805, 812, 74 S.E. 315; City Council of Augusta v. Hamilton, 56 Ga.App. 859, 862, 194 S.E. 244; Brown v. State, 110 Ga.App. 401, 404, 138 S.E.2d 741. Argument referring to the wealth or poverty of a party or contrasting the financial status of one party with that of another is universally condemned. Southern R. Co. v. Black, 57 Ga.App. 592, 594, 196 S.E. 291; John J. Woodside Storage Co. v. Reese, 105 Ga.App. 602(6), 125 S.E.2d 556; American Casualty Co. v. Seckinger, 108 Ga.App. 262(3), 132 S.E.2d 794. See Ann. 32 A.L.R.2d 9.

However, the trial court has a broad discretion in passing upon a motion for mistrial based on improper remarks of counsel. McCoy v. Scarborough, 73 Ga.App. 519, 523, 37 S.E.2d 221; Western & Atlantic R. v. Hart, 95 Ga.App. 810, 816, 99 S.E.2d 302; Travelers Indem. Co. v. Wilkes County, 102 Ga.App. 362, 365, 116 S.E.2d 314; Lanier...